Tatenda Mhere v Jeremiah Matenhese N.O. (In his capacity as Executor Dative for Estate Late Obert Mhere) and Others

The late Obert Mhere died on 8 January 2007, survived by his wife Sinikiwe Mariva and four children including the applicant Tatenda Mhere. His estate comprised mainly of House No 4181 Lancaster Close, Mucheke, Masvingo. The 1st respondent, an official of Polka Executors, was appointed as Executor Dative for the estate. The applicant alleged that the 1st respondent fraudulently obtained consent for the sale of the house by counterfeiting his signature, conducted a double sale of the property, and that the estate registration was a nullity as it was predicated on a draft copy of the deceased's death certificate. The applicant claimed his father left a will bequeathing the house to his wife and, upon her death, to his children in undivided shares. The 1st respondent denied all impropriety, stating the applicant and his mother arranged the sale, and that the will was invalid. When the matter was set down for hearing on 15 March 2022, none of the respondents appeared despite proper service.

• Whether the court is obliged to grant default judgment without scrutinizing the merits, legality, or propriety of the order sought
• Whether a judge may request further clarification or arguments in a chamber application for default judgment under Rule 60(8)(b) of the High Court Rules, 2021
• Whether the removal of an Executor Dative under Section 85 of the Administration of Estates Act is appropriate where the estate registration itself is alleged to be a nullity
• Whether all beneficiaries must be joined in proceedings seeking to enforce rights under a will
• Whether costs on an attorney and client scale are justified in the circumstances

Default judgment was granted against all three respondents. The application succeeded as per the draft order subject to the deletion of paragraph 5 thereof (which would have authorized the 2nd respondent to take measures to ensure the property remained part of the estate). Costs were awarded to the applicant against the 1st respondent on the ordinary scale (not the punitive attorney and client scale sought).

A court is not obliged to grant default judgment as a mere formality or rubber-stamping exercise. The court retains inherent powers and discretion to refuse default judgment where: (1) the court lacks jurisdiction; (2) the order sought is patently unlawful or contrary to public policy; or (3) one or more requirements for granting such an order have not been satisfied. Furthermore, in chamber applications, a judge may require a legal practitioner to provide further written or oral arguments on specific issues pursuant to the court's procedural rules, even in default judgment applications.

The court made several observations without finally deciding them: (1) there appeared to be confusion as to whether the estate should be administered under testate or intestate succession; (2) where an applicant alleges the entire estate registration is a nullity, the appropriate remedy would be to declare the entire process null rather than merely seeking removal of the executor under Section 85 of the Administration of Estates Act; (3) where an application is founded on the existence of a will naming multiple beneficiaries, those beneficiaries should ordinarily be cited as parties; (4) orders affecting third parties who have not been cited as parties are problematic; and (5) there was no justification for granting costs on the punitive attorney and client scale in the circumstances.

This case is significant in Zimbabwean civil procedure (and potentially relevant to South African jurisprudence given similarities in common law traditions) as it clarifies the court's discretion in default judgment applications. It establishes that courts are not mere rubber stamps and retain inherent powers to scrutinize applications even where respondents are in default. The case reinforces judicial oversight to prevent unlawful or improper orders being granted simply due to a party's default, and confirms that judges may seek clarifications in chamber applications under procedural rules.